Citation Nr: 1331935 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 13-00 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a right eye disorder, claimed as secondary to service-connected left eye blindness. REPRESENTATION Appellant represented by: Marine Corps League ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran had active service from November 1975 to November 1977. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. FINDINGS OF FACT 1. The Veteran is service-connected for left eye blindness. 2. The Veteran's right eye presbyopia is a refractive error of the eye and is not a disability within the meaning of applicable regulations providing for payment of VA disability compensation benefits. 3. The currently-diagnosed right eye cataract was not shown in service or for many years and was not caused by or permanently worsened in severity by service-connected left eye blindness. CONCLUSION OF LAW A right eye disorder was not incurred in or aggravated by service; nor is it proximately due to, aggravated by, or the result of service-connected left eye blindness. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran's right eye disorders, diagnosed as presbyopia and cataracts, are not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. In this case, as above, neither presbyopia nor cataracts are listed in 38 C.F.R. §§ 3.307, 3.309(a); therefore, the one-year presumption does not apply. Service connection may also be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test based on nexus: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. In this decision, the Board has considered the lay evidence as it pertains to the issue. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). "Competent medical evidence" means that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). With respect to evaluating the medical evidence, generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran filed the current claim in August 2010. In an August 2010 VA examination, he reported a two year history of diminished vision in his right eye. The diagnosis was age-appropriate cataract. He has also been diagnosed with presbyopia of the right eye. Therefore, a right eye disorder is currently shown. The evidence does not reflect an in-service incurrence or injury to the right eye. Although the Veteran sustained an injury to the left eye (resulting in blindness for which he is service-connected), there was no injury to the right eye in service, nor has he so maintained. In addition, presbyopia and cataracts of the right eye were not shown for many years after service. As the second element (in-service incurrence) is not demonstrated, the claim for service connection on a direct basis is denied. The Veteran's primary contention is that his right eye disorder is related to his service-connected left eye disability. Specifically, he maintains that his left eye blindness has caused strain and stress on the right eye over the years, creating the vision in the right eye to deteriorate at a faster rate. The Veteran has been diagnosed with presbyopia, defined as hyperopia (an error in refraction) and impairment of vision due to advancing years or to old age. See Dorland's Illustrated Medical Dictionary, 1511 (32nd ed. 2012). However, presbyopia is not a disease or injury within the meaning of VA statutes and regulations. Specifically, 38 C.F.R. § 3.303(c) states that refractive errors of the eye are not diseases or injuries within the meaning of the applicable legislation. Therefore, to the extent that he claims presbyopia, the claim must necessarily be denied because it is not a qualifying disorder on which to grant service connection. The next issue is whether the currently-diagnosed right eye cataract was caused by or permanently worsened by service-connected left eye blindness. The evidence does not support the Veteran's claim. Specifically, in a March 2005 VA examination, undertaken to address the Veteran's left eye disability, the examiner found that visual acuity in the right eye (uncorrected) at near was 20/30, and at distance 20/20. Right eye visual acuity (corrected) at near and distance was 20/20. Further, although the right eye optic nerve had slightly thin inferior rim tissue, all other structures were noted as unremarkable. The VA examiner diagnosed right eye refractive error. At that time, no cataract was noted so no opinion was rendered. Further, as above, a refractive error is not an eligible disability for VA compensation purposes. Five years later, the Veteran was afforded another VA eye examination in September 2010, undertaken to address his claim for a right eye disorder. At that time, he reported decreased vision in the right eye over the past couple of years. Upon examination, the VA examiner noted no evidence of visual field deficit and no diplopia. Fundus imagining of the right eye revealed normal macula, vessels, and periphery. The VA examiner diagnosed age-appropriate right eye cataract, but did not specifically address the issue of secondary service-connection. In a January 2011 addendum opinion, the ophthalmologist opined that the Veteran had early age-appropriate lens changes in the right eye. According to the physician, the lens begins to develop cataractous changes after the age of 40. The Veteran's cataract was found to be consistent with the normal aging process. The physician opined that the Veteran's right eye cataract was not consistent with trauma or related to his service-connected left eye injury. Further, the physician found that the Veteran's visual acuity in the right eye was 20/20 at both distance and near. While the examiner did not expressly use the word "aggravation," a fair reading of the opinion is that the examiner determined that the right eye disorder was related to the Veteran's age (using the terms "age-appropriate" and "normal aging process"), which by implication indicates that it was not aggravated beyond the normal aging process due to the left eye disability. The Board finds that the September 2010 VA examination report and the January 2011 VA addendum medical opinion weigh against a finding that currently-diagnosed right eye cataract was caused by or permanently worsened (aggravated) by service-connected left eye blindness. The Board has also reviewed VA treatment records; however, they are negative for evidence of treatment related to the right eye, do not establish a nexus between the right eye cataract and service-connected left eye blindness, and do not demonstrate that right eye vision was permanently worsened by the service-connected left eye blindness. The Board has also considered the Veteran's statements in support of a relationship between the right eye disorder and left eye blindness. While he is competent to report symptoms as they come to him through his senses, the causes of right eye cataracts is not the type of disorder that a lay person can provide competent evidence on questions of etiology. See Layno, 6 Vet. App. at 465 (competent lay evidence is evidence not requiring that the proponent have specialized education, training, or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matter that can be observed and described by a lay person); see also Rucker at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). The etiology of the right eye cataract is a complex medical question involving internal and unseen system processes unobservable by the Veteran. Additionally, an opinion as to etiology of cataracts would require knowledge, training, or experience to render an opinion as to the relationship of how, and to what extent, the left eye blindness, is related to the right eye cataract. He is not shown to have such knowledge, training, or experience to render such an opinion. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for right eye disorder as secondary to service-connected left eye blindness disability, and the appeal is denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by a September 2010 letter. In this notification, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate the claim for service connection, including secondary service connection, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the September 2010 letter included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the service connection claim currently on appeal, the evidence of record includes service treatment records, post-service VA, and the Veteran's written assertions. VA has also obtained VA medical examinations in September 2010 and an addendum opinion in January 2011 to assist in determining whether the right eye disorder was caused or permanently worsened in severity by the service-connected left eye blindness disability. The Board finds the September 2010 VA examination and the January 2011 VA medical opinion are adequate as the VA examiner reviewed the claims file and provided a conclusion with supporting rationale. As discussed, the VA examiner did not specifically state whether the right eye disorder was "aggravated" by the Veteran's service-connected left eye disability in legal language of aggravation; however, for the reasons discussed in detail above, the Board finds that the medical evidence of record sufficiently addresses both the question of proximate cause and aggravation as it addresses the factual question of whether there was worsening beyond a normal progression. In this respect, there is sufficient medical evidence on the question of aggravation. VA treatment records do not demonstrate that the right eye disorder has permanently worsened due to service-connected left eye blindness. Further, the September 2010 examiner found no evidence of visual field deficit, no diplopia, normal macula, normal vessels, and normal periphery of the right eye. The follow-up January 2011 opinion reported that the Veteran's visual acuity in the right eye was 20/20 at both distance and near. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal that is addressed on the merits in this decision. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained; therefore, no further assistance with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Service connection for a right eye disorder, claimed as secondary to service-connected left eye blindness, is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs